The Republicans Try to Change the Rules in 2001

During and after the 2000 presidential campaign, right-wing activists made clear their interest in securing the appointment of far-right conservatives to the federal bench through the election of George W. Bush. Bush himself named Antonin Scalia and Clarence Thomas as his models for Supreme Court appointments. Early action by both the Bush Administration and Senate Republicans in 2001 represented a significant shift in the nominations process to ease the way for such right-wing nominees on the lower courts.

In March, President Bush ended a tradition begun under President Eisenhower by eliminating the American Bar Association's pre-nomination screening of judicial candidates in March. At the same time, the President withdrew nine appeals court nominations made by President Clinton in January, many of whom had suffered serious delays over the last several years and several of whom had bipartisan support. Press reports indicated the growing influence of right-wing groups. For example, the New York Times reported in April that a large number of the prospective judicial nominees under serious review had been recommended directly by the right-wing Federalist Society, whose members serve in the White House Counsel's office that screens candidates. The Federalist Society — which convened a March 28 panel in Chicago entitled “Rolling Back the New Deal” — wants to severely hamper the ability of federal officials to monitor and regulate environmental quality, public education, civil rights enforcement, workplace standards and other issues.

Even as the Bush administration closely consulted with right-wing groups, however, reports emerged that virtually no consultation with Democratic senators occurred. Some Democratic senators apparently did not hear of prospective nominees until they learned of them through media reports. Democratic senators sent a letter of complaint to the White House counsel. Even after that letter, some Democratic senators have noted that “consultation” has consisted of little more than a phone call from the White House announcing the intent to nominate a particular person. Even Senator Hatch conceded in early May that genuine consultation did not take place with respect to the first round of Bush nominees.

At the same time, however, Senator Hatch — now working with a Republican president — announced his intent to engineer a significant, unilateral shift in the blue slip policy. Despite the gridlock that resulted when a Republican senator failed to return a blue slip under the Clinton administration, Hatch announced a major change in the existing blue slip policy. From now on, said Hatch, a Democrat's decision not to return a blue slip would not necessarily have an impact on the confirmation process; instead, Hatch said he would be free to proceed full speed ahead with a confirmation if, in his personal opinion, there had been adequate consultation with both home state senators.

Pointing to the lack of consultation, Senate Democrats cried foul. “We're just saying follow the same rules for a Republican president that you followed for a Democratic president,” explained the ranking Judiciary Committee Democrat, Senator Patrick Leahy. The Bush administration intends “to abrogate the Senate's role in choosing judges so they can choose the most ideological bench that we have seen in America ever,” said Senator Charles Schumer. Judiciary Committee Democrats temporarily held up votes on several pending Justice Department nominees in order to push for a solution to the problem. Republicans responded that Senate Democrats were being “obstructionists” and were unwilling to review nominees based on their merits, and Senator Hatch adhered to his position.

At this point, it remains uncertain precisely how the Committee will process judicial nominees. President Bush largely avoided the blue slip issue in his first set of 11 nominees by selecting nominees primarily from states without a Democratic senator. But Senator John Edwards of North Carolina has already expressed serious concerns about the administration's selection of a very conservative nominee for the very seat on the Fourth Circuit that was blocked for more than four years when African-Americans had been nominated by President Clinton. Very conservative nominees, such as U.S. Christopher Cox and Peter Keisler, are expected in the coming weeks despite deep objections by home state senators. Democratic senators are requesting genuine consultation and consideration of their own suggested nominees, a practice which President Clinton extended to Republicans. For now, it is uncertain whether President Bush will agree to Democrats' request. Moreover, the fact that all of Bush's initial nominations were to the influential appeals courts and that many of the nominees appear to share a right-wing ideology has raised serious concerns on and off Capitol Hill.